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Appeals Court Rules in Will Dispute between Ex-Wife and Brother

Appeals Court Rules in Will Dispute between Ex-Wife and Brother

A dispute over a will that made its way to the Indiana Court of Appeals serves as a useful lesson for the importance of having an updated will and knowing where the original will is, as reported in The National Law Review article titled “Where’s the Will? Indiana Court of Appeals Reverses Trial Court’s Presumption of Revocation for Lost Will.”

Everett Trowbridge executed a will after his divorce, in which his ex-wife Christal and his brother Michael Trowbridge were named as co-executors. The will was generous to Christal, leaving her the former marital home, 100% of one retirement account, 25% of another retirement account and all of Everett’s personal property. While Everett had received the marital home according to the dissolution order, Christal never deeded it to Everett, as was required by the dissolution order. His brother Michael Trowbridge received 75% of the second retirement account. Six years after the will was executed, Everett Trowbridge died. One week later, Trowbridge petitioned to open an intestate estate, saying that there was no will.

Christal called the estate’s attorney, Michael, and told him that she had the will. She then met the attorney at his office. She said she told him that she had the original will. Michael later said that Christal told him that Everett gave her a copy of his will and left the original in his home safe.

Michael took careful notes and said that he would have to find out whether a copy of a will could be offered for probate, before attempting to probate the will she provided.

Michael said he next contacted Trowbridge and asked if he had found a will in Everett’s house. Trowbridge said that no will was found after a search.

Michael uncovered a rule that says where a testator retains possession or control of a will and the will isn’t found at the testator’s death, the presumption is that the will was destroyed. Under this rule, the proponent of the will can rebut the presumption by introducing evidence that supports the conclusion that the will was not in fact revoked. In addition, if a copy of the will is offered for probate and contested, the contesting party, in this case, Trowbridge, has the burden of proof to establish that the will was revoked. According to Michael, once he discovered this rule, he wrote to Christal and told her he would not offer the will for probate. He also suggested that she hire an attorney.

Christal petitioned the court to probate the will, and the trial court found for Trowbridge, saying that the presumption of revocation had established that Everett revoked his will. Christal appealed, and the Indiana Court of Appeals reversed the ruling. The court held that before the presumption of revocation could apply, there must be a predicate finding that the will had remained in the testator’s possession. The only evidence to this point was from Christal, who testified that she maintained possession of the original will.

There was yet another hearing, and the trial court found that the evidence supported the finding that Trowbridge maintained possession of the original will. The court said that Michael’s testimony, supported by handwritten notes, was that when he first spoke with Christal, she said that she had a copy and Everett had the original will in his safe. The trial court applied the presumption of revocation and declined to probate the will. Christal appealed again.

In its analysis, the Court of Appeals first easily affirmed the trial court’s finding that Trowbridge maintained possession of the will, and so he received the benefit of the presumption. However, this is not the end of the question, said the court.

It’s ultimately up to the person who is contesting the will to show that it was revoked, and the trial court had ignored the evidence supporting Christal’s argument that it was not revoked. Included in the court’s decision were these facts:

Everett did not execute his will, until after he and Christal were divorced. Everett continued to list Christal as the beneficiary of his accounts, as recently as the year before he died. He also never enforced the dissolution order requiring Christal to deed the formal marital property to him.

There are two lessons here for estate planning: always know where the original copy of a will is, and be aware of the procedural rules that govern wills. There are procedural rules that shift the burden of proof from one party to another and could be the reason that the wishes of the testator are followed—or not.

Reference: The National Law Review (June 22, 2020) “Where’s the Will? Indiana Court of Appeals Reverses Trial Court’s Presumption of Revocation for Lost Will”

Read other related articles at:

Ex-Wife Able to Claim Former Husband’s Estate

Out-of-date beneficiary designations are a common and costly mistake

Also, read one of our previous Blogs at:

Can I Prevent a Will Contest After I’m Gone?

Click here to check out our Master Class!

Este Palnning Coronavirus

Coronavirus Makes Estate and Tax Planning an Urgent Task

Coronavirus Makes Estate and Tax Planning an Urgent Task

 

The Covid-19 pandemic has brought estate planning front and center to many people who would otherwise dismiss it as something they would get to at some point in the future, says the article “Estate and Life Insurance Considerations During the Covid-19 Pandemic” from Bloomberg Tax. Many don’t have a frame of reference to address the medical, legal, financial, and insurance questions that now need to be addressed promptly. They’ve never experienced anything like today’s world. The time to get your affairs in order is now.

What will happen if we get sick? Will we recover? Who will take care of us and make legal decisions for us? What if a family member is in an assisted living facility and is incapacitated? All of these “what if” questions are now pressing concerns. Now is the time to review all legal, insurance and financial plans, and take into consideration two new laws: the SECURE Act and the CARES Act.

An experienced estate planning attorney who focuses in estate planning will save you an immense amount of money. Bargain hunters be careful: a small mistake or oversight in an estate plan can lead to expensive consequences. A competent legal professional is the best investment.

Here’s an example of what can go wrong: A person names two minor children—under age 18—as beneficiaries on their IRA account, life insurance policy or bank account. The person dies. Minors are not permitted to hold title to assets. Minors in New York are considered wards of the court in need of protection and court supervision. Therefore, in this state, the result of the beneficiary designation means that a special Surrogate’s Court proceeding will need to occur to have a pecuniary guardian appointed for the minors, even if the applicant is their custodial guardian.

Another “what if?” is the support for a disabled or special needs beneficiary who may be receiving government support. If the parents are gone, who will care for their disabled child? What if there are not enough assets in the estate to provide supplemental financial support, in addition to the government benefits? Life insurance can be used to fund a special needs trust to ensure that their child will not be dependent upon family or friends to care for their needs. However, if there is no special needs trust in place, an inheritance may put the child’s government support in jeopardy.

Here are the core estate planning documents to be prepared:

  • Last Will and Testament
  • Revocable Living Trust
  • Durable General Power of Attorney
  • Health Care Declaration

The SECURE Act changed the rules regarding inherited IRAs. With the exception of a surviving spouse and a few other exempt individuals, the required minimum distributions must be taken within a ten- year time period. This causes an additional income tax liability for future generations. There are strategies to reduce the impact, but they require advance planning with the help of an estate planning attorney.

Reference: Bloomberg Tax (June 18, 2020) “Estate and Life Insurance Considerations During the Covid-19 Pandemic”

Read more related articles at:

The Coronavirus Has Americans Scrambling to Set Their Estate Plans. Here Are Some Key Things to Know.

Taking Advantage of Estate Planning Opportunities in Light of Coronavirus and Market Plunge

Also check out one of our previous Blogs at :

Coronavirus News Should Make You Think about Estate Planning

Click here to check out our Master Class!

 

Covid

What If the Coronavirus Leaves Me Critically Ill?

 

What If the Coronavirus Leaves Me Critically Ill?

The smartest time to get your affairs in order, is when you’re healthy, regardless of a pandemic, advises NBC Bay Area’s recent article entitled “3 Steps to Take Now in Case COVID-19 Leaves You Critically Ill.”

You should talk to an estate planning attorney and think about these three steps to consider taking yourself before you meet:

  • Prepare your end-of-life care
  • Decide what your wishes are for your assets; and
  • Plan your funeral or memorial service if one is desired.

Prepare End-of-Life Care. For end-of-life care, many people have what’s sometimes called a “living will”. In California, it’s often a six-page form called the Advanced Health Care Directive. With it, you can set forth your wishes about your end-of-life care and designate a decision-maker.

In California, you can download an advanced health care directive form for free, via the California Courts website. It’s actually pretty easy to read. Note: you’ll need two witnesses to sign it with you.

Decide what your wishes are for your assets. This is where an attorney can really be key. You can discuss who you’ll want as an executor to coordinate your estate and probate. You can also think about who you want to receive your home, vehicles, funds in your bank accounts and other assets.

There are a number of important legal aspects to consider, and you can talk to your legal counsel about the process.

Your Funeral Plans. You also need to be certain that the details of your final wishes are known. It’s a good idea to write down exactly what you want or don’t want.

It’s not uncommon for families to have a hard time with these choices, when someone dies without a plan. Prevent conflict and stress, by writing your wishes down now.

It’s best to work with an attorney who specializes in estate planning, wills and trusts.

Reference: NBC Bay Area (April 15, 2020) “3 Steps to Take Now in Case COVID-19 Leaves You Critically Ill”

Read More Related Articles at:

How sick will the coronavirus make you? The answer may be in your genes

People of Any Age with Underlying Medical Conditions

Also, read one of our previous Blogs at:

How Can Estate Planning Protect Me from COVID-19?

Click here to check out our Master Class!

Last will

What You Need to Know about Drafting Your Will

What You Need to Know about Drafting Your Will

A last will and testament is just one of the legal documents that you should have in place to help your loved ones know what your wishes are, if you can’t say so yourself, advises CNBC’s recent article entitled, “Here’s what you need to know about creating a will.” In this pandemic, the coronavirus may have you thinking more about your mortality.

Despite COVID-19, it’s important to ponder what would happen to your bank accounts, your home, your belongings or even your minor children, if you’re no longer here. You should prepare a will, if you don’t already have one. It is also important to update your will, if it’s been written.

If you don’t have a valid will, your property will pass on to your heirs by law. These individuals may or may not be who you would have provided for in a will. If you pass away with no will —dying intestate — a state court decides who gets your assets and, if you have children, a judge says who will care for them. As a result, if you have an unmarried partner or a favorite charity but have no legal no will, your assets may not go to them.

The courts will typically pass on assets to your closest blood relatives, despite the fact that it wouldn’t have been your first choice.

Your will is just one part of a complete estate plan. Putting a plan in place for your assets helps ensure that at your death, your wishes will be carried out and that family fights and hurt feelings don’t make for destroyed relationships.

There are some assets that pass outside of the will, such as retirement accounts, 401(k) plans, pensions, IRAs and life insurance policies.

Therefore, the individual designated as beneficiary on those accounts will receive the money, despite any directions to the contrary in your will. If there’s no beneficiary is listed on those accounts, or the beneficiary has already passed away, the assets automatically go into probate—the process by which all of your debt is paid off and then the remaining assets are distributed to heirs.

If you own a home, be certain that you know the way in which it should be titled. This will help it end up with those you intend, since laws vary from state to state.

Ask an estate planning attorney in your area — to ensure familiarity with state laws—for help with your will and the rest of your estate plan.

Reference: CNBC (June 1, 2020) “Here’s what you need to know about creating a will”

Read more related articles at :

9 Things You Need to Know About Creating a Will

6 important things to think about when writing your will

Also, read one of our previous Blogs at :

Do It Yourself Wills Go Wrong–Fast

Click here to check out our Master Class!

ahd

Why You Need an Advance Directive Right Now

 

Why You Need an Advance Directive Right Now

The number of Americans who have died in the last few months because of COVID-19 is staggering, reports Inside Indiana Business in an article that advises readers to “Get Your Advance Directives in Place Now.” Just talking with family members about your wishes is not enough. You’ll need to put the proper legal documents in place. It’s not that hard, and it is necessary.

Only one in three Americans has completed any kind of advance directive. Many younger adults don’t feel the need to complete these documents, but there have been many examples that prove this is the wrong approach. Both Terri Schiavo and Karen Ann Quinlan were only in their twenties when they were not able to make their wishes known. Family members fought in and out of court for years.

The clinical realities of COVID-19 make it hard for healthcare workers to determine their patient’s wishes. Visitors are not permitted, and staff members are overwhelmed with patients. COVID-19 respiratory symptoms come on rapidly in many cases, making it impossible to convey end-of-life wishes.

Advance directives are the written instructions regarding health care decisions, if you are not able to communicate your wishes. They must be in compliance with your state’s laws. The most common types of advance care directives are the durable power of attorney for health care and the living will.

A durable power of attorney for health care names a person, usually a spouse or family member, to be a health care agent. You may also name alternative agents. This person will be able to make decisions about your health care on your behalf, so be sure they know what your wishes are.

A living will is the document that states your wishes about the type of care you do or don’t want to receive. Living wills typically concern treatments like CPR (cardiopulmonary resuscitation), breathing machines (ventilators), dialysis, feeding tubes and certain treatments, like the use of an IV (intravenous, meaning medicine delivered directly into the bloodstream).

Studies show that people who have properly executed advance directives are more likely to get care that reflects their stated preferences.

Traditional documents will cover most health situations. However, the specific symptoms of COVID-19 may require you to reconsider opinions on certain treatments. Many COVID-19 patients need ventilators to breathe and do subsequently recover. If in the past you wanted to refuse being put on a ventilator, this may cause you to reconsider.

Almost all states require notarization and/or witnesses for advance directives and other estate planning documents to be valid. Many states, including Indiana and New York, now allow for remote notarization.

Talk with your estate planning attorney about putting all of your estate planning documents in order.

Reference: Inside Indiana Business (June 8, 2020) “Get Your Advance Directives in Place Now”

Read more related articles at :

Coronavirus And Advance Directives: Decisions You Need To Make Now

Coronavirus Pandemic: Understanding the Importance of Advance Directives

Also, read one of our previous Blogs at:

Why Do I Need an Advanced Healthcare Directive?

Click here to check out our Master Class!

 

Estate Plan Covid-19

What are the Most Important Items in an Estate Plan During the Pandemic?

What are the Most Important Items in an Estate Plan During the Pandemic?

KCRA’s article entitled“5 things to know about estate planning” says that estate planning is a topic that people frequently don’t like to think about. However, more people now want to create a will or revise one that’s already in existence, because of the COVID-19 pandemic.

You should have a will. You can find forms online, or you can (in some states) use a holographic will, which is handwritten. However, a holographic will can be incomplete and unclear. DIY estate planning isn’t a good idea if you have any property, minor children, or want to save on taxes for your family. Use an experienced estate planning attorney to ensure that you are covering all of your bases.

Without a will, your “state” makes one for you. If you die intestate, state law will dictate how your probate estate will be distributed at your death. However, this makes it take longer to administer your estate, which extends the grieving process for family members.  It is also more expensive, more time-consuming and more work for those you leave behind. Lastly, you have no say in how you want your property distributed.

Why do I need a will? Everyone should think about estate planning and have an estate plan in place. This should include what would happen, if you’re incapacitated. With the coronavirus pandemic, this might mean contracting the disease and being in a hospital on a ventilator for weeks and unable to care for your children.

How long does a will take? Drafting your will is a very personal and customized process that usually happens over several meetings with a qualified estate planning attorney. It could be weeks or months, but the average length of time it takes to create a will is 30 to 60 days. However, in the midst of the pandemic, estate planning attorneys are able to get these completed much more quickly, when necessary.

What about COVID-19? When your will is complete, there’s usually a signing meeting set with the attorney, witnesses, a notary and the person creating the will. However, now there’s no way to safely gather to sign these critical documents. Many states have made exceptions to the witness rule or are allowing processes using technology, known as remote notarization.

Reference: KCRA (April 16, 2020). “5 things to know about estate planning”

Read more related articles at:

The Covid-19 Essential Estate Planning “Go Package”

A Guide To Estate Planning During The Coronavirus Pandemic

Also, read one of our previous Blogs at:

Requests for Estate Plans Reflect Fears about Coronavirus

Click here to check out our Master Class!

 

Best states to retire in

Some States are Lowering Taxes to Entice Retirees to Relocate

Some States are Lowering Taxes to Entice Retirees to Relocate

The State of Maryland excludes from taxes up to $31,100 in income from pensions and 401(k) plans. However, its state and local taxes on other types of income—including distributions from IRAs—can run as high as 9%.

Kiplinger’s March article entitled “States Lower Taxes to Court Retirees” explains the good news for Marylanders willing to relocate, is that there are other states which give retirees a break. For example, Delaware and Virginia are both friendlier to tax-conscious seniors, according to Kiplinger’s state-by-state guide to taxes on retirees. Marylanders can move to Florida, which has no income tax and is on Kiplinger’s list of most-tax-friendly states.

To address his state’s image and tax issues, Maryland Governor Larry Hogan has introduced a bill that would eliminate state taxes on the first $50,000 of income for retirees making up to $100,000 in federally adjusted gross income. Therefore, retirees with incomes of $50,000 or less would pay no state tax.

Other states are also trying to find ways to keep retirees from heading off to lower-tax states. Illinois Governor J.B. Pritzker recently signed legislation that will make it easier for seniors in Cook County (which includes Chicago) to apply for a property tax break of up to $8,000 a year. Kiplinger has designated Illinois as one of the least tax-friendly states for retirees, mostly due to its high property taxes. West Virginia got a “mixed” rating from Kiplinger for the way it taxes retirees. They are phasing out taxes on Social Security benefits over three years. New Mexico lawmakers are considering several bills that would repeal or reduce taxes on Social Security. The Land of Enchantment also received a “mixed” rating from Kiplinger.

Here are the states where the most retirees are moving, based on the number of people age 60 and older who moved into a state versus the number of people who moved out.

State – Net Migration

  • Florida – 68,918
  • Arizona – 31,201
  • South Carolina – 12,001
  • North Carolina – 9,209
  • Nevada – 8,582
  • Tennessee – 8,259
  • Texas – 8,296
  • Washington – 3,964
  • Idaho – 2,966
  • Delaware – 2,605

Source: Smart Asset analysis of 2017 census data

Whether you’re planning to stay where you are when you retire or move somewhere else, it’s critical that you understand and include the cost of federal and state taxes, when estimating your retirement budget.

Reference: Kiplinger (March 4, 2020) “States Lower Taxes to Court Retirees

Read more related articles at :

The Most Tax-Friendly States to Retire

Learn Which States Are the Most Tax-Friendly for Retirees

What Are the Best States to Retire for Taxes?

Also, read one of our previous Blogs at:

How Do I Include Retirement Accounts in Estate Planning?

Click here to check out our Master Class! 

Elderly Abuse

Will the Sunshine State Crack Down on Crimes against the Elderly?

Will the Sunshine State Crack Down on Crimes against the Elderly?

Florida Governor Ron DeSantis signed a bill recently approving the creation of elder abuse fatality review teams.

These teams are authorized by Senate Bill 400, which permits, but doesn’t require the creation of elder death review teams in each of Florida’s 20 judicial circuits. The teams would review cases in their judicial circuit where abuse or neglect has been found to be linked to or the cause of an individual’s death.

The Naples Daily News’ recent article entitled “Deaths of Florida’s elderly who were abused or neglected to get increased scrutiny under new law” reports that for many years, the state has authorized teams to examine child deaths and domestic-violence deaths where abuse is involved. However, the state hasn’t had a comparable review when an elderly adult dies, even under suspicious circumstances.

State Senator Audrey Gibson, D-Jacksonville, has sponsored the bill for the last four years and remarked that it’s “incumbent upon us as a state” to review cases of elder abuse and to look for gaps in service and possible policy changes to better protect the elderly.

“It can help to reduce elder abuse, if somebody knows that it’s going to be up for review if something happens to that senior,” said Gibson, the Senate minority leader. “The other thing is to prevent what happened in the cases they’re reviewing, to keep that from happening to another senior.”

Elder advocates believe that the new elder death review teams could help decrease the number of cases of nursing home neglect and mistreatment, like those identified in a recent USA TODAY Network – Florida. The investigation looked at 54 nursing home deaths from 2013 through 2017 where state inspectors cited neglect and mistreatment as factors.

The investigation found that Florida’s Agency for Health Care Administration seldom investigated the deaths.

The new law states that these elder abuse fatality review teams can be established by state attorneys and would be part of the Department of Elder Affairs. They would be composed of volunteers and open to people from a variety of disciplines, such as law enforcement officers, elder law attorneys, prosecutors, judges, nurses and other elder care advocates.

The teams are restricted to looking at files that have been closed by the State Attorney’s Office, whether or not it resulted in criminal prosecution. Remarkably, state attorneys didn’t prosecute any of the 54 nursing home deaths reviewed in the network’s investigation.

Reference: Naples Daily News (June 11, 2020) “Deaths of Florida’s elderly who were abused or neglected to get increased scrutiny under new law”

 

Read more related articles at:

New Florida law scrutinizes elder abuse and neglect

New Laws Add Stiffer Penalties To Those Charged With Elderly Abuse

Also, read one of our previous blogs at:

Elder Abuse Continues as a Billion-dollar Problem

Click here to check out our Master Class!

Telehealth

Should Medicare Continue with Expanded Telehealth Access after COVID-19?

Should Medicare Continue with Expanded Telehealth Access after COVID-19?

 

“I can’t imagine going back,” said Seema Verma, administrator of the Centers for Medicare and Medicaid Services, told STAT during a live virtual event. “People recognize the value of this, so it seems like it would not be a good thing to force our beneficiaries to go back to in-person visits.”

STAT’s June 9 article “‘I can’t imagine going back’: Medicare leader calls for expanded telehealth access after Covid-19” reports that the comments were her strongest remarks to date on the need to preserve access to telemedicine after the outbreak. During the past three months, virtual visits have increased more than 40-fold in some parts of the country.

However, Verma remarked that the federal government must look at whether it should continue paying the same for virtual visits, as for in-person care. Equalizing payment during the pandemic was one of the big motivators in the telemedicine expansion.

“Right now for the public health emergency, we’re maintaining that equilibrium, but going forward that’s something that needs to be looked at,” Verma said. “I don’t see it as a one-to-one. think there are some potential savings for the system that do occur by having a telehealth visit.”

However, Verma was insistent in an interview that the increase in telemedicine visits has significantly improved access to care. She said weekly telemedicine visits increased to more than 1 million a week, compared to about 12,000 before coronavirus began to spread in the U.S. in March.

“It’s made a big contribution in saving lives, because it didn’t require our Medicare beneficiaries to leave their home,” she said. “It’s been an incredible response.”

Verma said action from Congress will be required to permanently expand telemedicine on a national level, because existing laws restrict coverage to people living in rural areas where access to care is particularly tight. However, Verma remarked that CMS is looking at ways to preserve access to telemedicine visits in settings, such as patient’s homes, hospice care and nursing homes. They’re also reviewing ways to permanently expand the types of services that can be provided via telemedicine, like emergency care, physical therapy and mental health consultations.

She noted that the Trump administration would back efforts to allow more telemedicine to be practiced across state lines. Currently, doctors are limited to providing care in the states where they’re licensed, which, in many instances, keeps patients from accessing care delivered by doctors who live across state lines. CMS relaxed those restrictions in the pandemic.

“For us to truly leverage the potential in the power of telehealth, we’re going to have to rethink our laws around licensing,” Verma said. “Is it really necessary to have those borders? We should allow…practicing across state lines, because it really has the potential to provide better services and reduce some of those shortages, especially in some of the highly specialized fields.”

Reference: STAT (June 9, 2020) “‘I can’t imagine going back’: Medicare leader calls for expanded telehealth access after Covid-19”

Read more related articles at:

Using Telehealth to Expand Access to Essential Health Services during the COVID-19 Pandemic

Experts Weigh in on Post-COVID-19 Telehealth Rules and Policies 

Also, read one of our previous blogs at :

Medicare is Expanding Telehealth Services During Coronavirus Pandemic

Click here to check out our Master Class!

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